Why does EU law increasingly interfere in sport?
Whilst sport has characteristics and stories of personal endeavour that distinguish it from many other industries, it is now a highly commercialised sector. The latest three year UK Premier League (PL) live broadcasting rights deal saved over £3bn.
With such high stakes come risk, the desire for legal recourse when things go wrong, and the gaze of competition law.
Historically, sports organisations generally operated as if they were immune from the EU's free movement rules and competition law. This was before journeyman footballer, Jean- Marc Bosman, complained that he was prevented from transferring between clubs at the end of his contract. He became the EU poster boy for wage inflation in football when free movement of players was enshrined by the European Courts in 1995. EU competition law was the basis of a decade long battle between publican, Karen Murphy, and the PL. She claimed that the PL was breaching competition law by forbidding a Greek broadcaster from supplying to her the technology needed to view live PL games in the UK. She was successful in her competition law challenge, but has ultimately come unstuck as a result of some complex copyright issues.
When assessing the legality of restrictions in sports regulations, the test established in the Wouters case is still the benchmark: does the restriction go further than is necessary to achieve the stated objective? Swimmers Meca and Medina tried, unsuccessfully, to get their doping bans overturned by arguing that the positive test doping level had been anti-competitively agreed to by the relevant doping labs. However, the London Welsh rugby club was successful in its recent appeal against a decision to exclude the club from the top league on the basis that its exclusion breached competition law.
Increasing commercial returns means increasing legal challenges for sports organisers.